BILL NUMBER: SB 143	CHAPTERED  07/28/99

	CHAPTER   221
	FILED WITH SECRETARY OF STATE   JULY 28, 1999
	APPROVED BY GOVERNOR   JULY 28, 1999
	PASSED THE SENATE   JULY 15, 1999
	PASSED THE ASSEMBLY   JULY 8, 1999
	AMENDED IN ASSEMBLY   JUNE 24, 1999
	AMENDED IN SENATE   APRIL 6, 1999

INTRODUCED BY   Senator Burton

                        JANUARY 5, 1999

   An act to amend Sections 6068 and 6085 of, to amend, repeal, and
add Sections 6079.1 and 6086.65 of, and to add Section 6095.1 to, the
Business and Professions Code, relating to attorneys.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 143, Burton.  Attorneys:  discipline.
   Existing law provides for disciplinary actions against attorneys.

   Existing law imposes various duties on attorneys, including the
duty to cooperate and participate in any disciplinary investigation
or other regulatory or disciplinary proceeding pending against the
attorney.  However, existing law provides that this requirement shall
not be construed to deprive an attorney of any privilege guaranteed
by the Fifth Amendment to the Constitution of the United States or
any other constitutional or statutory privileges.
   This bill would also provide that this provision shall not be
construed to require an attorney to cooperate with a request that
requires the attorney to waive any constitutional or statutory
privilege or to comply with a request for information or other
matters within an unreasonable period of time in light of the time
constraints of the attorney's practice.  It would also provide that
any exercise by an attorney of any constitutional or statutory
privilege shall not be used against the attorney in a regulatory or
disciplinary proceeding against him or her.
   Existing law provides that an attorney complained against shall be
given reasonable notice and opportunity to exercise various defense
rights.
   This bill would require the notice and opportunity to also be fair
and adequate, and would specify that the rights include the right to
exercise any right guaranteed by the State Constitution or the
United States Constitution, including the right against
self-incrimination.
   The bill would also require the State Bar to compile specified
disciplinary statistics relating to who is prosecuted, and to issue a
written report on or before  June 30, 2001, to the Senate and
Assembly Judiciary Committees.  The bill would provide that
procedures used in the disciplinary process shall ensure that
resources of the State Bar are used fairly and equitably in the
investigation and prosecution of complaints against all attorneys.
It would also provide, as specified, that disciplinary proceedings
shall not be brought in disproportionate numbers against attorneys
practicing as solo practitioners or in small law firms, as defined,
or partnerships, as compared to proceedings brought against attorneys
practicing in large law firms.  It would prohibit the report from
being used as a defense or mitigating factor in any disciplinary
proceeding against an attorney.
   Existing law requires the Supreme Court to appoint to the State
Bar Court a presiding judge, no fewer than 7 hearing judges, and any
additional judges as may be authorized by the Legislature.
   This bill instead would require, as of November 1, 2000, that the
Supreme Court appoints the presiding judge to the State Bar Court and
that 5 hearing judges also be appointed, 2 of whom would be
appointed by the Supreme Court, one by the Governor, one by the
Senate Committee on Rules, and one by the Speaker of the Assembly.
   Existing law establishes a Review Department of the State Bar
Court that consists of, among others, one Lay Judge and one Review
Department Judge.
   This bill instead would provide, as of November 1, 2000, for 2
Review Department Judges appointed by the Supreme Court.  The bill
also would revise the provision authorizing the Board of Governors to
provide a rule regarding the review of decisions other than
decisions issued by the Review Department of the State Bar Court.
   The bill additionally would make technical conforming changes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 6068 of the Business and Professions Code is
amended to read:
   6068.  It is the duty of an attorney to do all of the following:
   (a) To support the Constitution and laws of the United States and
of this state.
   (b) To maintain the respect due to the courts of justice and
judicial officers.
   (c) To counsel or maintain such actions, proceedings, or defenses
only as appear to him or her legal or just, except the defense of a
person charged with a public offense.
   (d) To employ, for the purpose of maintaining the causes confided
to him or her such means only as are consistent with truth, and never
to seek to mislead the judge or any judicial officer by an artifice
or false statement of fact or law.
   (e) To maintain inviolate the confidence, and at every peril to
himself or herself to preserve the secrets, of his or her client.
   (f) To abstain from all offensive personality, and to advance no
fact prejudicial to the honor or reputation of a party or witness,
unless required by the justice of the cause with which he or she is
charged.
   (g) Not to encourage either the commencement or the continuance of
an action or proceeding from any corrupt motive of passion or
interest.
   (h) Never to reject, for any consideration personal to himself or
herself, the cause of the defenseless or the oppressed.
   (i) To cooperate and participate in any disciplinary investigation
or other regulatory or disciplinary proceeding pending against the
attorney.  However, this subdivision shall not be construed to
deprive an attorney of any privilege guaranteed by the Fifth
Amendment to the Constitution of the United States or any other
constitutional or statutory privileges, nor shall this subdivision be
construed to require an attorney to cooperate with a request that
requires the attorney to waive any constitutional or statutory
privilege or to comply with a request for information or other
matters within an unreasonable period of time in light of the time
constraints of the attorney's practice.  Any exercise by an attorney
of any constitutional or statutory privilege shall not be used
against the attorney in a regulatory or disciplinary proceeding
against him or her.
   (j) To comply with the requirements of Section 6002.1.
   (k) To comply with all conditions attached to any disciplinary
probation, including a probation imposed with the concurrence of the
attorney.
   (l) To keep all agreements made in lieu of disciplinary
prosecution with the agency charged with attorney discipline.
   (m) To respond promptly to reasonable status inquiries of clients
and to keep clients reasonably informed of significant developments
in matters with regard to which the attorney has agreed to provide
legal services.
   (n) To provide copies to the client of certain documents under
time limits and as prescribed in a rule of professional conduct which
the board shall adopt.
   (o) To report to the agency charged with attorney discipline, in
writing, within 30 days of the time the attorney has knowledge of any
of the following:
   (1) The filing of three or more lawsuits in a 12-month period
against the attorney for malpractice or other wrongful conduct
committed in a professional capacity.
   (2) The entry of judgment against the attorney in any civil action
for fraud, misrepresentation, breach of fiduciary duty, or gross
negligence committed in a professional capacity.
   (3) The imposition of any judicial sanctions against the attorney,
except for sanctions for failure to make discovery or monetary
sanctions of less than one thousand dollars ($1,000).
   (4) The bringing of an indictment or information charging a felony
against the attorney.
   (5) The conviction of the attorney, including any verdict of
guilty, or plea of guilty or no contest, of any felony, or any
misdemeanor committed in the course of the practice of law, or in any
manner such that a client of the attorney was the victim, or a
necessary element of which, as determined by the statutory or common
law definition of the misdemeanor, involves improper conduct of an
attorney, including dishonesty or other moral turpitude, or an
attempt or a conspiracy or solicitation of another to commit a felony
or any such misdemeanor.
   (6) The imposition of discipline against the attorney by any
professional or occupational disciplinary agency or licensing board,
whether in California or elsewhere.
   (7) Reversal of judgment in a proceeding based in whole or in part
upon misconduct, grossly incompetent representation, or willful
misrepresentation by an attorney.
   (8) As used in this subdivision, "against the attorney" includes
claims and proceedings against any firm of attorneys for the practice
of law in which the attorney was a partner at the time of the
conduct complained of and any law corporation in which the attorney
was a shareholder at the time of the conduct complained of unless the
matter has to the attorney's knowledge already been reported by the
law firm or corporation.
   (9) The State Bar may develop a prescribed form for the making of
reports required by this section, usage of which it may require by
rule or regulation.
   (10) This subdivision is only intended to provide that the failure
to report as required herein may serve as a basis of discipline.
  SEC. 2.  Section 6079.1 of the Business and Professions Code is
amended to read:
   6079.1.  (a) The Supreme Court shall appoint a presiding judge of
the State Bar Court and no fewer than seven hearing judges, and any
additional hearing judges as may be authorized by the Legislature, to
efficiently decide any and all regulatory matters pending before the
Hearing Department of the State Bar Court.  The presiding judge and
all other judges of that department shall be appointed for a term of
six years and may be reappointed for additional six-year terms.  Any
judge appointed under this section shall be subject to admonition,
censure, removal, or retirement by the Supreme Court upon the same
grounds as provided for judges of courts of record of this state.
   (b) Judges of the State Bar Court appointed under this section
shall not engage in the private practice of law.  The State Bar Court
shall be broadly representative of the ethnic, sexual, and racial
diversity of the population of California and composed in accordance
with Sections 11140 and 11141 of the Government Code.  Each judge:
   (1) Shall have been a member of the State Bar for at least five
years.
   (2) Shall not have any record of the imposition of discipline as
an attorney in California or any other jurisdiction.
   (3) Shall meet such other requirements as may be established by
subdivision (d) of Section 12011.5 of the Government Code.
   (c) The board shall screen and rate all applicants for appointment
or reappointment as a State Bar Court judge and submit its
recommendations to the appointing authority, unless otherwise
directed by the appointing authority.  The board shall hold hearings
and allow public comment on the qualifications of recommended
nominees submitted to the appointing authority.  Written comment
received by the board and any hearing record shall be transmitted to
the appointing authority together with  its recommendations.  The
board shall grant a preference to persons with prior judicial
experience, and submit no fewer than three recommendations for each
available judicial position.
   (d) For judges appointed pursuant to this section or Section
6086.65, the board shall fix and pay reasonable compensation and
expenses and provide adequate supporting staff and facilities.
Hearing judges shall be paid the same salary as municipal court
judges.  The presiding judge shall be paid the same salary as a
superior court judge.
   (e) From among the members of the State Bar or retired judges, the
board may appoint pro tempore judges to decide matters in the
Hearing Department of the State Bar Court when a judge of the State
Bar is unavailable to serve without undue delay to the proceeding.
The board may set the qualifications, terms, and conditions of
service for pro tempore judges and may, in its discretion, compensate
some or all of them out of funds appropriated by the board for this
purpose.
   (f) The board may fix a date no later than September 1, 1989, on
which all proceedings pending before the Hearing Department of the
State Bar Court shall be decided by a judge or pro tempore judge
appointed under this section.  From and after that date, a judge or
pro tempore judge appointed under this section shall hear every
regulatory matter pending in the Hearing Department of the State Bar
Court as to which the taking of testimony or offering of evidence at
trial has not commenced, and when so assigned, shall sit as the sole
adjudicator, except for rulings which are to be made by the presiding
judge of the State Bar Court or referees of other departments of the
State Bar Court.
   (g) Any judge or pro tempore judge of the State Bar Court as well
as any employee of the State Bar assigned to the State Bar Court
shall have the same immunity which attaches to judges in judicial
proceedings in this state.  Nothing in this subdivision limits or
alters the immunities accorded the State Bar, its officers and
employees, or any judge or referee of the State Bar Court as they
existed prior to January 1, 1989.  This subdivision does not
constitute a change in, but is cumulative with, existing law.
   (h) Nothing in this section shall be construed to prohibit the
board from appointing persons to serve without compensation to
arbitrate fee disputes under Article 13 (commencing with Section
6200) of this chapter or to monitor the probation of a member of the
State Bar, whether those appointed under Section 6079, as added by
Chapter 1114 of the Statutes of 1986, serve in the State Bar Court or
otherwise.
   (i) Any retired judge or referee appointed under Section 6079, as
added by Chapter 1114 of the Statutes of 1986, prior to July 1, 1989,
or any other authority may continue on or after July 1, 1989, to
exercise the duties and powers authorized by that section or of the
referee's appointment as to any matter assigned to him or her unless
the matter has been reassigned under subdivision (f).
   (j) This section shall cease to be operative on November 1, 2000,
and as of that date is repealed, unless a later enacted statute, that
is enacted before November 1, 2000, deletes or extends that date.
  SEC. 3.  Section 6079.1 is added to the Business and Professions
Code, to read:
   6079.1.  (a) The Supreme Court shall appoint a presiding judge of
the State Bar Court.  In addition, five hearing judges shall be
appointed, two by the Supreme Court, one by the Governor, one by the
Senate Committee on Rules, and one by the Speaker of the Assembly, to
efficiently decide any and all regulatory matters pending before the
Hearing Department of the State Bar Court.  The presiding judge and
all other judges of that department shall be appointed for a term of
six years and may be reappointed for additional six-year terms.  Any
judge appointed under this section shall be subject to admonition,
censure, removal, or retirement by the Supreme Court upon the same
grounds as provided for judges of courts of record of this state.
   (b) Judges of the State Bar Court appointed under this section
shall not engage in the private practice of law.  The State Bar Court
shall be broadly representative of the ethnic, sexual, and racial
diversity of the population of California and composed in accordance
with Sections 11140 and 11141 of the Government Code.  Each judge:
   (1) Shall have been a member of the State Bar for at least five
years.
   (2) Shall not have any record of the imposition of discipline as
an attorney in California or any other jurisdiction.
   (3) Shall meet such other requirements as may be established by
subdivision (d) of Section 12011.5 of the Government Code.
   (c) The board shall screen and rate all applicants for appointment
or reappointment as a State Bar Court judge and submit
recommendations to the appointing authority, unless otherwise
directed by the appointing authority.  The board shall hold hearings
and allow public comment on the qualifications of recommended
nominees submitted to the appointing authority.  Written comment
received by the board and any hearing record shall be transmitted to
the appointing authority together with its recommendations.  The
board shall grant a preference to persons with prior judicial
experience, and submit no fewer than three recommendations for each
available judicial position.
   (d) For judges appointed pursuant to this section or Section
6086.65, the board shall fix and pay reasonable compensation and
expenses and provide adequate supporting staff and facilities.
Hearing judges shall be paid the same salary as municipal court
judges.  The presiding judge shall be paid the same salary as a
superior court judge.
   (e) From among the members of the State Bar or retired judges, the
board may appoint pro tempore judges to decide matters in the
Hearing Department of the State Bar Court when a judge of the State
Bar is unavailable to serve without undue delay to the proceeding.
The board may set the qualifications, terms, and conditions of
service for pro tempore judges and may, in its discretion, compensate
some or all of them out of funds appropriated by the board for this
purpose.
   (f) The board may fix a date no later than September 1, 1989, on
which all proceedings pending before the Hearing Department of the
State Bar Court shall be decided by a judge or pro tempore judge
appointed under this section.  From and after that date, a judge or
pro tempore judge appointed under this section shall hear every
regulatory matter pending in the Hearing Department of the State Bar
Court as to which the taking of testimony or offering of evidence at
trial has not commenced, and when so assigned, shall sit as the sole
adjudicator, except for rulings which are to be made by the presiding
judge of the State Bar Court or referees of other departments of the
State Bar Court.
   (g) Any judge or pro tempore judge of the State Bar Court as well
as any employee of the State Bar assigned to the State Bar Court
shall have the same immunity which attaches to judges in judicial
proceedings in this state.  Nothing in this subdivision limits or
alters the immunities accorded the State Bar, its officers and
employees, or any judge or referee of the State Bar Court as they
existed prior to January 1, 1989.  This subdivision does not
constitute a change in, but is cumulative with, existing law.
   (h) Nothing in this section shall be construed to prohibit the
board from appointing persons to serve without compensation to
arbitrate fee disputes under Article 13 (commencing with Section
6200) of this chapter or to monitor the probation of a member of the
State Bar, whether those appointed under Section 6079, as added by
Chapter 1114 of the Statutes of 1986, serve in the State Bar Court or
otherwise.
   (i) Any retired judge or referee appointed under Section 6079, as
added by Chapter 1114 of the Statutes of 1986, prior to July 1, 1989,
or any other authority may continue on or after July 1, 1989, to
exercise the duties and powers authorized by that section or of the
referee's appointment as to any matter assigned to him or her unless
the matter has been reassigned under subdivision (f).
   (j) This section shall become operative on November 1, 2000.
  SEC. 4.  Section 6085 of the Business and Professions Code is
amended to read:
   6085.  Any person complained against shall be given fair,
adequate, and reasonable notice and have a fair, adequate, and
reasonable opportunity and right:
   (a) To defend against the charge by the introduction of evidence.

   (b) To receive any and all exculpatory evidence from the State Bar
after the initiation of a disciplinary proceeding in State Bar
Court, and thereafter when this evidence is discovered and available.
  This subdivision shall not require the disclosure of mitigating
evidence.
   (c) To be represented by counsel.
   (d) To examine and cross-examine witnesses.
   (e) To exercise any right guaranteed by the State Constitution or
the United States Constitution, including the right against
self-incrimination.
   He or she shall also have the right to the issuance of subpoenas
for attendance of witnesses to appear and testify or produce books
and papers, as provided in this chapter.
  SEC. 5.  Section 6086.65 of the Business and Professions Code is
amended to read:
   6086.65.  (a) There is a Review Department of the State Bar Court,
which consists of the Presiding Judge of the State Bar Court, one
Lay Judge, and one Review Department Judge.  The judges of the Review
Department shall be nominated, appointed, and subject to discipline
as provided by subdivision (a) of Section 6079.1, shall be qualified
as provided by subdivision (b) of Section 6079.1, and shall be
compensated as provided for the Presiding Judge by subdivision (d) of
Section 6079.1.  However, the Lay Judge, who shall be a person who
has never been a member of the State Bar or admitted to practice law
before any court in the United States, and the Review Department
Judge may be appointed to, and paid as, positions occupying one-half
the time and pay of the Presiding Judge.  Candidates shall be rated
and screened by the board as provided in subdivision (c) of Section
6079.1.
   (b) The board may fix a date no later than September 1, 1989, on
which all proceedings pending before the Review Department shall be
decided by judges of the Review Department appointed under this
section.  The Review Department in existence on June 30, 1989, may
continue on and after July 1, 1989, to exercise the duties and powers
under prior Section 6086.6 as to any matter assigned to it prior to
the date set by the board pursuant to this section.
   (c) The Presiding Judge of the State Bar Court shall appoint an
Executive Committee of the State Bar Court of no fewer than seven
persons, including one person who has never been a member of the
State Bar or admitted to practice law before any court in the United
States.  The Executive Committee may adopt rules of practice for the
operation of the State Bar Court as provided in Section 6086.5.
   (d) Any decision or order reviewable by the Review Department and
issued by a judge of the State Bar Court appointed pursuant to
Section 6079.1 may be reviewed only upon timely request of a party to
the proceeding and not on the Review Department's own motion.
Unless otherwise provided by a rule of practice or procedure approved
by the Supreme Court, the party requesting review shall have the
burden of showing one of the following:
   (1) The Hearing Department did not proceed in the manner required
by law.
   (2) The findings of the Hearing Department are not supported by
substantial evidence.
   (3) The decision or recommendation of the Hearing Department is
clearly erroneous.
   (e) This section shall cease to be operative on November 1, 2000,
and as of that date is repealed, unless a later enacted statute, that
is enacted after November 1, 2000, deletes or extends that date.
  SEC. 6.  Section 6086.65 is added to the Business and Professions
Code, to read:
   6086.65.  (a) There is a Review Department of the State Bar Court,
that consists of the Presiding Judge of the State Bar Court and two
Review Department Judges appointed by the Supreme Court.  The judges
of the Review Department shall be nominated, appointed, and subject
to discipline as provided by subdivision (a) of Section 6079.1, shall
be qualified as provided by subdivision (b) of Section 6079.1, and
shall be compensated as provided for the Presiding Judge by
subdivision (d) of Section 6079.1.  However, the two Review
Department Judges may be appointed to, and paid as, positions
occupying one-half the time and pay of the Presiding Judge.
Candidates shall be rated and screened by the board as provided in
subdivision (c) of Section 6079.1.
   (b) The board may fix a date no later than September 1, 1989, on
which all proceedings pending before the Review Department shall be
decided by judges of the Review Department appointed under this
section.  The Review Department in existence on June 30, 1989, may
continue on and after July 1, 1989, to exercise the duties and powers
under prior Section 6086.6 as to any matter assigned to it prior to
the date set by the board pursuant to this section.
   (c) The Presiding Judge of the State Bar Court shall appoint an
Executive Committee of the State Bar Court of no fewer than seven
persons, including one person who has never been a member of the
State Bar or admitted to practice law before any court in the United
States.  The Executive Committee may adopt rules of practice for the
operation of the State Bar Court as provided in Section 6086.5.
   (d) Any decision or order reviewable by the Review Department and
issued by a judge of the State Bar Court appointed pursuant to
Section 6079.1 may be reviewed only upon timely request of a party to
the proceeding and not on the Review Department's own motion.
Unless otherwise provided by a rule of practice or procedure approved
by the Supreme Court, the party requesting review shall have the
burden of showing one of the following:
   (1) The Hearing Department did not proceed in the manner required
by law.
   (2) The findings of the Hearing Department are not supported by
substantial evidence.
   (3) The decision or recommendation of the Hearing Department is
clearly erroneous.
   (e) This section shall become operative on November 1, 2000.
  SEC. 7.  Section 6095.1 is added to the Business and Professions
Code, to read:
   6095.1.  (a) Beginning on April 1, 2000, and through March 31,
2001, the State Bar shall compile statistics indicating the number of
complaints against attorneys, broken down to reflect the percentage
of complaints brought against attorneys practicing as solo
practitioners, in small law firms or partnerships, and in large law
firms.  The State Bar shall also compile statistics indicating the
percentage of complaints that are investigated, the percentage of
complaints that are prosecuted, and the outcomes of those
prosecutions against solo practitioners, attorneys practicing in
small law firms or partnerships, and attorneys practicing in large
law firms.  For the purposes of the study, agreements in lieu of
discipline shall not be counted as prosecutions.   Practicing
attorneys shall provide any information that is requested by the bar
deemed necessary for the purpose of compiling the statistics.  For
purposes of this section, "small law firm" means a firm, partnership,
association, corporation, or limited liability partnership that
includes 10 or fewer attorneys.
   (b) On or before June 30, 2001, the State Bar shall issue a
written report to the Senate Committee on Judiciary and the Assembly
Committee on Judiciary on procedures used in the disciplinary process
to ensure that resources of the State Bar are used fairly and
equitably in the investigation and prosecution of complaints against
attorneys.  In particular, the report shall focus on whether
disciplinary proceedings are brought in disproportionate numbers
against attorneys practicing as solo practitioners or in small law
firms or partnerships, as compared to proceedings brought against
attorneys practicing in large law firms.  The report shall also
describe any procedures in place or under consideration to correct
any institutional bias and shall include a discussion of, and
recommendations regarding, any additional changes to the discipline
process that would make it more equitable.  In particular, the State
Bar shall consider disciplinary avenues other than the investigation
and prosecution of complaints against attorneys.  After issuing the
report, the State Bar shall continue to compile and maintain
statistics pursuant to subdivision (a), and shall make those
statistics available to the public upon request.
   (c) Procedures used in the disciplinary process shall ensure that
resources of the State Bar are used fairly and equitably in the
investigation and prosecution of complaints against all attorneys.
Disciplinary proceedings shall not be brought in disproportionate
numbers against attorneys practicing as solo practitioners or in
small law firms or partnerships, as compared to proceedings brought
against attorneys practicing in large law firms, unless the number of
complaints against solo practitioners, or attorneys practicing in
small law firms or partnerships, is commensurate with the higher
number of disciplinary proceedings.
   (d) The report of the State Bar prepared pursuant to this section
shall not be used as a defense or mitigating factor in any
disciplinary proceeding against an attorney.
